Upendra Nath Jana vs Jogendra Nath Mana

It appears that in this case the petitioner applied on the 8th October 1925 for issue of summons on four of his witnesses and that he paid the necessary costs on that day. An order was made on the 10th October 1975 by the learned Magistrate directing the issue of summons on the petitioner''s witnesses, but through some mistake or other the order was not carried out and the summonses were not issued at all. The case came on for hearing on the 12th October when the petitioner''s witnesses did not attend the Court. The petitioner thereupon prayed that the case might be adjourned to a later date and that meanwhile his witnesses might be summoned. This application was rejected. The petitioner complains that he had not had sufficient opportunity given to him to produce his witnesses before the learned Magistrate. In our opinion, an order having been made for the issue of summons on the petitioner''s witnesses that order should have been carried out, inasmuch as the order in question was not carried out, the petitioner had good ground for complaint that ha had not been afforded an opportunity to produce his witnesses before the Court.

In this view of the matter, we set aside the conviction and the sentence passed on the petitioner and direct that he be retried according to law from the point at which he should have been allowed an opportunity to produce his witnesses.